Report 17 - Access to Information Review Task Force

THE NATURE AND STRUCTURE OF EXEMPTING PROVISIONS AND THE USE OF THE CONCEPT OF A PUBLIC INTEREST OVERRIDE

PART III - OTHER JURISDICTIONS - FOREIGN

Australia ⁽²⁷⁾

Australia has had legislation dealing with access to information for about the same length of time as Canada. The object clause of the legislation is of interest because it does express the right of access in terms of a balance between that right and the public interest, private interest and business interest in exempting information:

3 Object

(1) The object of this Act is to extend as far as possible the right of the Australian community to access to information in the possession of the Government of the Commonwealth by:

(a) making available to the public information about the operations of departments and public authorities and, in particular, ensuring that rules and practices affecting members of the public in their dealings with departments and public authorities are readily available to persons affected by those rules and practices; and

(b) creating a general right of access to information in documentary form in the possession of Ministers, departments and public authorities, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business affairs of persons in respect of whom information is collected and held by departments and public authorities; and

(c) creating a right to bring about the amendment of records containing personal information that is incomplete, incorrect, out of date or misleading.

(2) It is the intention of the Parliament that the provisions of this Act shall be interpreted so as to further the object set out in subsection (1) and that any discretions conferred by this Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.

Part IV of the legislation (sections 32 - 47A) deals with exemptions. Exemptions are not expressed in terms of "may" or "shall" refuse to disclose. Rather, the sections in Part IV describe various documents which are "exempt documents". The right of access in section 18 is specifically qualified in that there is no requirement to give access to a document which is an "exempt document". Accordingly, there are no "discretionary" or "mandatory" exemptions. Subject to a process whereby a document may be certified as exempt (discussed below) there is always a discretion to release a document even if it is an "exempt document".

Section 38 of the Australian legislation is similar to Section 24 of the Canadian legislation in that it creates an exemption for documents which are subject to the secrecy provisions of another statute. The provision in the other enactment must be either listed in Schedule 3 or the other enactment must specify that Section 38 applies.

Class vs. Injury or Harm-Based Exemptions

Under the Australian legislation, a number of descriptions of exempt documents reference an injury or harm which "could reasonably be expected" to result if the document were to be disclosed. Others reference only the type or class of document. In some cases, such as section 36 which deals with internal working documents, the reason for classifying the document as an exempt document is phrased in terms of release being "contrary to the public interest." Exemptions addressing cabinet documents, documents affecting national security and documents affecting relations with states, particularly in respect of information received in confidence, tend to be described by class. Documents addressing law enforcement and protection of public safety and those affecting state or third party financial interests and privacy tend to be described in terms of the harm or injury that could reasonably be expected to result from disclosure.

Mandatory vs. Discretionary Exemptions

As indicated above, when a document is identified as an exempt document, there is no right of access to it. On the other hand, there is no mandatory obligation to refuse disclosure either. Theoretically there would appear to always be a discretion as to whether to invoke the exemption.

The Australian legislation does, however, have a provision which is quite different from the Canadian legislative approaches which have been canvassed. Section 33 - Documents affecting national security, defence or international relations; section 33A - Documents affecting relations with States; section 34 - Cabinet Documents; section 35 - Executive Council documents; and section 36 - Internal working documents, all contemplate that a Minister, on being satisfied that a document is of the type specified in the exempting provision, may sign a certificate to that effect. A certificate is conclusive proof that the document is an exempt document.

This certificate becomes important for the purposes of the review procedures under Part VI. Appeals of decisions refusing access are reviewable internally and then by the Administrative Appeals Tribunal. Under Section 58 the Tribunal can review an Agency decision to determine if a document is in fact an exempt document. It does not, however, have the power to review the decision to invoke the exemption. When there is a certificate in respect of the document, the Tribunal cannot review the decision to give the certificate except as specifically provided. It may only determine the question whether there exist reasonable grounds for the claim. If it determines that there are not reasonable grounds for the claim in the certificate, the responsible minister has 28 days to either revoke the certificate or not revoke it. If he or she decides not to revoke it, he or she must (a) notify the applicant in writing; (b) lay a copy of the notice before each House of the Parliament; and (c) read the notice to the House.

These provisions, while granting the Minister very substantial power to avoid disclosure, do require the expenditure of a fair bit of political capital. Unfortunately we have not been able to locate any reliable information on how often certificates have been used since 1982.

Use of a Public Interest Override

The Australian legislation has no general public interest override, but does recognise that the public interest in disclosure may, in certain circumstances, outweigh the public interest in exempting the document from disclosure.

Section 39 - Documents affecting financial or property interests of the Commonwealth and
Section 40 - Documents concerning certain operations of agencies, both provide,

This section does not apply to a document in respect of matter in the document the disclosure of which under this Act would, on balance, be in the public interest.

Ireland ⁽²⁸⁾

The long title to the Irish legislation which came into force in 1998 provides as follows:

An Act to enable members of the public to obtain access, to the greatest extent possible consistent with the public interest and the right to privacy, to information in the possession of public bodies and to enable persons to have personal information relating to them in the possession of such bodies corrected and, accordingly, to provide for a right of access to records held by such bodies, for necessary exceptions to that right and for assistance to persons to enable them to exercise it, to provide for the independent review both of decisions of such bodies relating to that right and of the operation of this Act generally (including the proceedings of such bodies pursuant to this Act) and, for those purposes, to provide for the establishment of the Office of Information Commissioner and to define its functions, to provide for the publication by such bodies of certain information about them relevant to the purposes of this Act, to amend the Official Secrets Act, 1963, and to provide for related matters.

Exemptions are set out in Part III of the legislation and are either discretionary or mandatory ("may" or "shall"). Generally speaking, the exemptions are much more detailed than those found in the Canadian legislation. Otherwise, the structure of the exempting provisions is a series of sections, either requiring or permitting exemption, and describing documents either by the class of information in the record or by reference to some harm, prejudice or injury.

The Irish legislation approaches any conflict between the access legislation and other statutes by listing, in the Third Schedule, statutory confidentiality provisions which are not exempt from the application of the Freedom of Information Act. Paragraph 32(1)(a) provides that disclosure of a record is to be refused where disclosure is prohibited by any statute other than one that is listed in the Third Schedule. The legislation provides for a periodic review of any enactment prohibiting disclosure which is not listed in the Third Schedule.

Class vs. Injury or Harm-Based Exemptions

Class exemptions are provided for in sections 19, 20 and 22 dealing with records relating to meetings of the government, deliberations of public bodies, and parliamentary and court matters. Exemptions dealing with certain third party confidential information such as subsection 24 (2) - confidential information from other governments; paragraph 26(1)(b) - breach of a duty of confidence provided for by a provision of an agreement or enactment or by law; paragraph 27(1)(a) - trade secrets of a third party; and section 28 - personal information, are also expressed as class exemptions.

Mandatory vs. Discretionary Exemptions

The Irish legislation has a number of provisions which are expressed as mandatory exemptions in that the head of a public body to which the legislation applies "shall" refuse to grant a request for access to a record. These mandatory exemptions apply to:

Subsection 19 (2) - certain records reflecting statements made at a meeting of the Government;

Subsection 22 (1) - records relating to parliamentary, court and certain other proceedings, including legal or professional privilege, disclosure which would constitute a contempt of court;

Section 26 - records containing information obtained in confidence;

Section 27 - commercially sensitive information such as trade secrets, confidential commercial information and information the disclosure of which could prejudice the conduct or outcome of contractual or other negotiations;

Section 28 - personal information; and

Section 32 - information which is exempted from disclosure by some other enactment.

Section 25 of the legislation provides that a decision not to release a record which is based on Section 23 - law enforcement and public safety, or on Section 24 - security, defence and international relations, (both of which are discretionary exemptions) can be made conclusive by the appropriate Minister making a declaration, by way of a certificate, that the record is exempt. The certificate must be for a fixed period and state an expiry date. It needs to be renewed when its expiry date is reached. The certificate must be filed, with a written explanation, with the Taoiseach (parliament). There is also provision for a review by the cabinet and, if appropriate, the cabinet can revoke the certificate. The Commissioner cannot review or overrule a certificate. Under Section 42, the High Court can review, and annul, a certificate. According to the Annual Reports of the Commissioner, two certificates were issued in 2000. ⁽²⁹⁾ There do not appear to have been any issued in 1999 or 1998. ⁽³⁰⁾

Use of a Public Interest Override

The legislation does not contain a general public interest override provision, but does contain specific public interest overrides in respect of certain exemptions. Section 26 - information obtained in confidence; Section 27 - commercially sensitive information; and Section 28 - personal information, each contain a provision that the exempting section does not apply if: "the public interest would, on balance, be better served by granting than by refusing to grant the request"; or, in the case of personal information, "the public interest that the request should be granted outweighs the public interest that the right to privacy of the individual to whom the information relates should be upheld". Section 27 - commercially sensitive information - also contains a provision that the exemption does not apply if, "disclosure of the information concerned is necessary in order to avoid a serious and imminent danger to the life or health of an individual or to the environment". Section 28 - personal information - includes a similar provision that the exemption does not apply if, "disclosure of the information is necessary in order to avoid a serious and imminent danger to the life or health of an individual".

New Zealand ⁽³¹⁾

The New Zealand Official Information Act 1982 is of a vintage similar to the Canadian legislation and takes an approach with respect to access to government information which is different from the approach which has been evidenced in the Canadian and foreign legislation set out above. Unlike the Canadian legislation, the New Zealand legislation provides for a right to information which presupposes the existence of a record containing the information. Prof. Rick Snell ⁽³²⁾ sees the use of the term "information" as opposed to use of the term "record" as important. He cites a statement by Jeffries J in a case cited in connection with the legislation in which the Court said:

"Perhaps the most outstanding feature of the definition is that the word 'information' is used which dramatically broadens the scope of the whole Act. The stuff of what is held by Departments, Ministers, or organizations is not confined to the written word but embraces any knowledge, however gained or held, by the named bodies in their official capacities. The omission, undoubtedly deliberate, not to define the word 'information' serves to emphasize the intention of the Legislature to place few limits on relevant knowledge.". ⁽³³⁾

Prof. Snell points out that the New Zealand Ombudsman has taken a strong stand that the term information cannot be limited to that information held in some documentary or recorded form. ⁽³⁴⁾

The New Zealand legislation also differs in the way in which it approaches both the right to information and the ability of the government to refuse to disclose information by invoking an exemption. In particular, the right to information is expressed in the following terms under section 5, "principle of availability":

"The question whether any official information is to be made available, where that question arises under this Act, shall be determined, except where this Act otherwise expressly requires, in accordance with the purposes of this Act and the principle that the information shall be made available unless there is good reason for withholding it."

Rather than adopting what might be considered a categorical exemption approach, such as that which we find in Canada and in Australia, the New Zealand legislation seems to encourage disclosure by setting forth not only a presumption that information is to be made available, but also a countervailing presumption that information should only be exempt from disclosure if there is "a good reason to withhold it". This approach and terminology is broader than the approach of relying on whether or not a particular piece of information falls within the parameters of an exempting provision. The legislation directs the government decision-maker to take a second step. He or she must first decide whether the information is capable of being exempted in accordance with one of the exempting provisions. He or she must then make a further determination that there is actually, in the circumstances of the specific case, "a good reason to withhold it".

However, despite its different approach to structuring the right of access and the circumstances under which a government institution may withhold information, the New Zealand legislation provides a mechanism for protecting information on principles which are remarkably similar to those which are addressed in the Canadian Access to Information Act and the comparable provincial legislation which has been discussed above. There are mandatory exemptions as well as discretionary exemptions although they are expressed as being "conclusive" and "other" reasons for withholding information. Reasons for withholding information are also expressed in terms of whether or not the information falls within a certain class or category of information as well as in the context of whether or not release of the information would be likely to result in some harm or prejudice.

In addition, the operation of the legislation is facilitated by Practice Guidelines ⁽³⁵⁾ which are issued by the Ombudsman. These Guidelines have been developed to assist both those who are requesting information and the public officials who must respond to such requests. They address the overall philosophical approach of the Office of the Ombudsman to the legislation as well as the application of specific exempting provisions.

The Official Information Act is, however, subject to confidentiality provisions appearing in other statutes. Subparagraph 18(c)(I)(i) provides that a request may be refused if making the information available would be contrary to the provisions of a specified enactment. This does not mean that other enactments are listed or specified as applying, but rather that the existence of a confidentiality provision in another enactment is a factor that the decision-maker takes into account when balancing the interests favouring disclosure and those favouring exemption. If the decision to exempt is based on some other statutory provision, that provision must be specified in the decision regarding non-disclosure. Subsection 52(3) provides that nothing in the statute derogates from

(a) Any provision which is contained in any other enactment and which authorises or requires official information to be made available; or

(b) Any provision which is contained in any other Act of Parliament or in any regulations within the meaning of the Regulation Act 1936 (made by Order in Council and in force immediately before the 1^st day of July 1983) and which -

(i) Imposes a prohibition or restriction in relation to the availability of official information; or

(ii) Regulates the manner in which official information may be obtained or made available;

Class vs. Injury or Harm-Based Exemptions

A number of exemptions are expressed in terms of injury. For instance, information, the making available of which, would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand (paragraph 6(a)); information the making available of which would be likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial - paragraph 6(c).

Other exemptions are directed to the nature of the information itself without reference to the consequence of release. For instance, information which constitutes a legal professional privilege - paragraph 9(2)(h) or personal information - paragraph 9(2)(a) are described in terms of their class rather than an injury or consequence from release.

Mandatory vs. Discretionary Exemptions

The concept of whether or not an exemption is mandatory or discretionary does not really appear in the New Zealand legislation. The principle of availability is countervailed, as we have seen, by the principle that information is to be made available unless there is "good reason for withholding it". Section 6 of the legislation then specifies that in certain circumstances there is an assumption that a good reason for withholding the official information exists. Examples of information where the predetermination has been made that there are conclusive reasons for withholding the information include, where disclosure would cause:

(a) Prejudice to the security or defence of New Zealand or the international relations of the Government of New Zealand;

(b) Prejudice to the entrusting of information to the Government of New Zealand on basis of confidence by a foreign government or an international organization;

(c) Prejudice to the maintenance of the law, including the prevention, investigation, and detection of offences and the right to a fair trial;

(d) Endangerment to the safety of any person; and

(e) Serious damage to the economy of New Zealand by disclosing prematurely the decision to change or continue certain Government economic or financial policies.

There are also some special reasons for withholding official information which relate to information which would be prejudicial to the security or defence, intergovernmental relations or international relations in respect of the Cook Islands, Tokelau, Niue, or the Ross Dependency.

In all other cases, which are discussed in section 9 of the legislation, the ability to withhold official information is expressed as follows:

1) Where this section applies, good reason for withholding official information exists, for the purpose of section 5 of the Act, unless, in the circumstances of the particular case, the withholding of that information is outweighed by other considerations which render it desirable, in the public interest, to make that information available.

2) The ability to exempt information in accordance with section 9 of the legislation applies only if the withholding of the information is necessary to-

(a) Protect the privacy of natural persons, including that of deceased natural persons; or

(b) Protect information where the making available of the information-

(i) Would disclose a trade secret; or

(ii) Would be likely unreasonably to prejudice the commercial position of the person who supplied or who is the subject of the information; or

(ba) Protect information which is subject to an obligation of confidence or which any person has been or could be compelled to provide under the authority of any enactment, where the making available of the information-

(i) Would be likely to prejudice the supply of similar information, or information from the same source, and it is in the public interest that such information should continue to be supplied; or

(ii) Would be likely otherwise to damage the public interest; or

(c) Avoid prejudice to measures protecting the health or safety of members of the public; or

(d) Avoid prejudice to the substantial economic interests of New Zealand; or

(e) Avoid prejudice to measures that prevent or mitigate material loss to members of the public; or

(f) Maintain the constitutional conventions for the time being which protect-

(i) The confidentiality of communications by or with the Sovereign or her representative;

(ii) Collective and individual ministerial responsibility;

(iii) The political neutrality of officials;

(iv) The confidentiality of advice tendered by Ministers of the Crown and officials; or

(g) Maintain the effective conduct of public affairs through-

(i) The free and frank expression of opinions by or between or to Ministers of the Crown or members of an organization or officers and employees of any Department or organization in the course of their duty; or

(ii) The protection of such Ministers, members of organizations, officers, and employees from improper pressure or harassment; or

(h) Maintain legal professional privilege; or

(i) Enable a Minister of the Crown or any Department or organization holding the information to carry out, without prejudice or disadvantage, commercial activities; or

(j) Enable a Minister of the Crown or any Department or organization holding the information to carry on, without prejudice or disadvantage, negotiations (including commercial and industrial negotiations); or

(k) Prevent the disclosure or use of official information for improper gain or improper advantage.

Use of a Public Interest Override

Because the New Zealand legislation mandates a consideration of the public interest in disclosure in each and every case, there is no separate provision which provides specifically for a consideration of the public interest in disclosure and whether or not the public interest in disclosure outweighs any prejudice or harm that might be caused by the release of the information. Such a public interest balancing test is mandated in respect of every release. However, the legislation does contain a provision which allows the Prime Minister or the Attorney General to override a determination by the Ombudsman that he will recommend that information be made available. Section 31 provides that the Prime Minister may certify that the making available of any information would be likely to prejudice the security or defence of New Zealand or the international relations of the Government of New Zealand; or any interest protected by section 7 of the Act, (special reasons for withholding official information related to the Cook Islands, etc.). Similarly, the Attorney General may certify that the making available of any information would be likely to prejudice the prevention, investigation, or detection of offences. When such a certification is made, the Ombudsman is not able to recommend that the information be made available. The most he can do is make a recommendation that the availability of the information be given further consideration. As of the 1997 Law Commission Report, section 31 had only been used once, to their knowledge. ⁽³⁶⁾

Absent a certification, if the Ombudsman makes a recommendation to the government that information be released, the government is obliged to comply with the recommendation. However, paragraph 32 (1)(a) provides that the Governor-in-Council can issue an Order-in-Council to override a recommendation of the Ombudsman with respect to the release of information. The Law Commission reports that since April 1, 1987 when the legislation underwent amendment, the veto by Order-in-Council has never been used. ⁽³⁷⁾

United Kingdom ⁽³⁸⁾

The UK legislation, which is expected to come into effect beginning in 2002, also takes an approach which is somewhat different from that which has been reviewed in Canada. Like New Zealand, the focus is on information rather than on records and the right to information is established in section 1. It is twofold,

(a) The entitlement to be informed in writing by the public authority whether it holds information of the description specified in the request; and

(b) The entitlement to have the information communicated to them.

Part II of the legislation then provides specific circumstances in which the duty to confirm or deny the existence of the information and the duty to provide the information does not arise. The two circumstances are when:

(a) A provision in Part II confers an absolute exemption; or

(b) A determination is made that in all the circumstances of the case, the public interest in maintaining the exclusion of the duty to confirm or deny the information or to disclose the information outweighs the public interest in either disclosing whether the public authority holds information or in disclosing the information itself.

The provisions conferring an absolute exemption are limited.

It should also be noted that there is a general limitation on the powers of the Information Commissioner who has oversight functions with respect to the statute. Generally speaking, the Commissioner can make orders requiring that information be released. The legislation provides that when a public authority has failed to comply with the requirements of the legislation with respect to the disclosure of information the Commissioner may issue an enforcement notice requiring the authority to take, within a specified time, such steps as he or she may specify for complying. There is, however, an exception from the duty to comply with an enforcement notice. Such an enforcement notice ceases to have effect if the accountable person in relation to the public authority which is the subject matter of the notice gives the Commissioner a certificate stating that the person has, on reasonable grounds, formed the opinion that there was no failure pursuant to the legislation. Any such certificate must be laid before each House of Parliament. Accordingly, the Commissioner's power to order the disclosure of information is subject to an override which can be exercised by the head of the public authority involved. Again, it is not clear how, or to what extent, this override provision will be used.

Another interesting feature of the legislation is found in the requirements that the Secretary of State issue a Code of Practice providing guidance to public authorities as to the practice which they should follow in connection with the discharge of their responsibilities under Part I of the legislation. The Code of Practice is to include provisions relating to:

(a) The provision of advice and assistance by public authorities to persons who propose to make requests for information;

(b) The transfer of requests from one public authority to another;

(c) Consultations with persons to whom the information requested relates or whose interests are likely to be effected by disclosure of the information;

(d) The inclusion in public authority contracts of terms relating to the disclosure of information; and

(e) The provision by public authorities of procedures for dealing with complaints about the manner in which they have handled requests for information.

The UK legislation provides, in paragraph 44(1)(a), that information is exempt if its disclosure is prohibited by or under any other enactment. Section 75 authorizes the Secretary of State to amend or repeal any enactment prohibiting the disclosure of information by a public authority that appears to be "capable of preventing the disclosure of information". It appears that further parliamentary intention is not necessary. The Secretary of State may by order:

- modify the enactment so as to amend or repeal the prohibition;

- provide transitional provisions;

- make different provisions for different cases.

Class vs. Injury or Harm-Based Exemptions

As with the Canadian legislation, the provisions in Part II of the UK Act which allow for the exemption of information express exemptions both in terms of injury to a specified interest arising upon disclosure of the information and with respect to a description of a category of information. For instance, information which is reasonably accessible to the applicant, otherwise than pursuant to the Freedom of Information Act, is exempt from disclosure under the Act - section 21. So too is information which is to be published or released at some future date - section 22. Information which has been supplied by or relating to bodies dealing with national security matters is described in terms of being information which a Minister of the Crown certifies was directly or indirectly supplied by or relates to a number of specified bodies. There is no reference to injury and the certificate is considered to be conclusive evidence of the fact that the information was supplied by or relates to the body in question. However, some information is exempted on the basis of prejudice or injury that would arise if it were to be released. For instance, section 26 deals with matters relating to defence and is framed as follows:

"Information is exempt information if its disclosure under this Act would, or would be likely to, prejudice-

(a) the defence of the British Islands or of any colony, or

(b) the capability, effectiveness or security of any relevant forces."

Section 27, which deals with international relations is also expressed in terms of whether or not the release of the information would be likely to prejudice relations between the United Kingdom and another state, an international organization or court, the interests of the United Kingdom abroad or the promotion or production of United Kingdom interests abroad.

Mandatory vs. Discretionary Exemptions

The United Kingdom legislation is awkwardly drafted. Section 2 which provides that in certain cases exemptions are absolute, lists those sections in Part II which are to be considered as absolute exemptions. They are as follows:

Section 21 - Information accessible to the applicant by other means;

Section 23 - Information supplied by, or relating to bodies dealing with security matters;

Section 32 - Court records;

Section 34 - Parliamentary privilege;

Section 36 - Prejudice to the effective conduct of public affairs, but only with respect to information held by the House of Commons or House of Lords;

Subsection 40(1) - Personal information about the applicant ⁽³⁹⁾;

Subsection 40(2) - Personal information, the disclosure of which would contravene data protection principles in the Data Protection Act 1998;

Section 41 - Information provided in confidence by a third party, including another public authority; and

Section 44 - Information the disclosure of which is prohibited by another enactment, is incompatible with European Community obligation or would constitute or be punishable as a contempt of court.

Accordingly, although the UK legislation does, at first glance, appear to provide for a more expansive regime of access, it is not at all clear to us that the inclusion of such a broad range of mandatory exemptions will, in fact, result in a more liberal access regime.

Use of a Public Interest Override

There is no general public interest override. Presumably, the public interest factor is taken into account by providing that the non-mandatory exemptions are only to be applied in those circumstances where the public interest in not disclosing the information outweighs the public interest in disclosure of the information. Because of the relative newness of the legislation, it is not completely clear how that public interest factor will be interpreted in practice.

In addition, the Lord Chancellor is obliged to issue a Code of Practice providing guidance to relevant authorities as to the practice which they should follow in connection with the keeping, management and destruction of records.

The Commissioner is also mandated to make recommendations as to good practices and to issue formal practice recommendations which would specify the steps which, in his opinion, ought to be taken in order to comply with the legislation.

United States ⁽⁴⁰⁾

The US Freedom of Information Act provides that each agency shall make available to the public information as follows: "…upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person". Exemptions to the requirement that records be disclosed are expressed in section 552 (b) in terms of section 552 (a), which sets out the right of access to records, not being applicable to certain records. Section 552 (d) makes it clear that the right to withhold information or limit the availability of records is specifically limited to the situations described in (b).

The U.S. legislation provides, in Exemption (3), that the right of access does not apply to information which is exempted from disclosure by another statute. The Exemption applies provided that the other statute:

- requires the matter be withheld from the public in such a manner as to leave no discretion on the issue; or

- establishes particular criteria for withholding or refers to particular types of matters to be withheld.

Class vs. Injury or Harm-Based Exemptions

Exemptions which are expressed as class-based are

(1) - National Defense or foreign policy as authorized by criteria established by an Executive order;

(2) - related solely to the internal personnel rules and practices of an agency;

(3) - exempted by other statutes;

(4) - trade secrets and commercial or financial information obtained from a person and privileged or confidential;

(5) - inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(8) - agency reports relating to the regulation or supervision of financial institutions; and

(9) - geological and geophysical information and data, including maps, concerning wells.

Only two exemptions are expressed as injury-based. Section 552 (b) (6) exempts "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Section 552 (b) (7) deals with law enforcement information and is expressed in terms of the injury or prejudice that "could reasonably be expected" to result from disclosure.

Mandatory vs. Discretionary Exemptions

Because of the way in which the legislation is structured, by providing that certain information is not subject to the section which mandates disclosure, the US legislation cannot really be analysed in terms of mandatory vs. discretionary exemptions.

Use of a Public Interest Override

There is no public interest override provision in the US legislation.

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²⁷ Freedom of Information Act, 1982

²⁸ Freedom of Information Act, 1997

²⁹ The 2000 Annual Report can be found at www.irlgov.ie/oic/report00/pub.htm , where there is reference to Section 25 certificates in the Table of Contents. At www.irlgov.ie/oic/report00/2122_262.htm there is a more specific reference to the two certificates.

³⁰ The 1998 Annual Report can be found at www.irlgov.ie/oic/report98/pub.htm; the 1999 Annual Report can be found at www.irlgov.ie/oic/report99/pub.htm

³¹ Official Information Act 1982

³² The Kiwi Paradox - A Comparison of Freedom of Information in Australia and New Zealand, Rick Snell, available on-line http://law.anu.edu.au/publications/flr/vol28N03/snell.htm

³³ Commissioner of Police v. Ombudsman, [1985] 1 NZLR 578 at 586

³⁴ New Zealand Ombudsman, "Application of Official Information Legislation to Non-Documentary Information" (1998) 4(3) Ombudsman Quarterly Review at p. 1

³⁵ Available at www.ombudsmen.govt.nz/guide1.htm

³⁶ Report 40, Review of the Official Information Act 1982, published 1997 at p. 97 & 98, paragraph 280

³⁷ Ibid. at p. 119, paragraph 353

³⁸ Freedom of Information Act 2000, 2000 Chapter 36

³⁹ Access to one's own personal information is governed by the Data Protection Act, enacted July, 1998 and in force March 1, 2000.

⁴⁰ United States Code, TITLE 5, section 552